TaxTMI 
TaxTMI 
2024 (12) TMI 1625
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.... of mental, emotional and sexual harassment against her Research Guide/Professor. A call to screen identity: 2. Even before proceeding further, we would direct the Registry to place a copy of this Judgment before the Hon'ble The Chief Justice urging formulation of Standard Operating Protocols and Practice Directions by the Civil Rules Committee and Criminal Rules Committee of the High Court to obliterate from the records, the names and identities of not just the Research Scholar in this case but every victim of mental, emotional and sexual harassment in all proceedings, be they in civil, criminal or writ jurisdiction and also incidentally, to protect the identity of the alleged perpetrator of such harassment and of the educational institution. 3. We had put considerable thought to this aspect and one of the options which we would urge for consideration is that when matters of similar nature are filed, a Practice Direction may be issued that in the original copy, the names and identities may be given and that original copy may be retained in a sealed cover by the Registry and in every other copy, even in those circulated to the Court and also among the counsels, the nam....
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....r registration was confirmed by communication dated 09.10.2017. It was also communicated to the Research Guide/ Professor. It was very specifically stipulated that the Research Scholar would work in the Department under the Research Guide/Professor, who had been approved for the said purpose in accordance with the Ph.D regulations in force. The Research Scholar also joined the Ph.D programme. She was placed under the guidance of the Research Guide/ Professor. Her registration for Ph.D (full time) had been granted from 28.09.2017. A few ruminations: 9. Even before examining the nature of the allegations raised by the Research Scholar, it would only be appropriate to understand that any student aspiring to get a Doctorate (Ph.D) will necessarily have to perforce move away from the security of class room study to a one-to-one interactive relationship with the Research Guide/Professor and seek guidance on the subject thesis. It involves close interactions, exchange of ideas, deep discussions, preparation of draft thesis and obtaining guidelines for further research and more importantly, approval of the research paper by the Research Guide/ Professor. The Research Scholar would re....
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....ement which could be interpreted by an already broken mind as a direct threat to her mental peace: ".... Also, you may note that failing to provide a reasonable and satisfactory reply, will lead to recommending to the Authorities to cancel the Ph.D registration, for indiscipline and providing false information." Letter dated 04.12.2018 from the Research Guide/Professor to the Research Scholar The allegations: 12. In the instant case, the Research Scholar had raised the following complaints against the Research Guide/Professor:- 1. Non-Allocation of sitting place for the first six months even after the continuous insistence. Later, she was allocated a chair direct opposite to the research supervisor, ***, though *** expressed her uncomfortable state, she was made to sit in the same way. 2. Threat of cancellation of Ph.D of ***. 3. She has given sum of two lakhs as bribe to *** for her Ph.D registration process as demanded by her guide ***. 4. Seeking of sexual favours. 5. Unauthorised academic assignments to the complainant, including handling of entire three papers in different semesters, question setting and evaluation of....
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....ersity Syndicate in their meeting held on 22.08.2019 that his conduct requires to be viewed very seriously and that his continuation in service would not only be highly detrimental to the interest of the students but also a grave danger to the scholars of the University and therefore, not withstanding the suggested punishment of the ICC, held that it would only be appropriate to discharge him from service on compulsory retirement. Accordingly, the Registrar passed orders discharging the Research Guide/ Professor from the service of the University on compulsory retirement with effect from 22.08.2019. W.P.(MD). No. 19440 of 2019: 17. This order was challenged by the Research Guide/Professor, in W.P.(MD). No. 19440 of 2019 before this Court. A learned Single Judge of this Court by order dated 24.01.2020 had allowed the Writ Petition. The learned Single Judge was of the opinion that there was no violation in the constitution of the Internal Complaints Committee (ICC), but had observed that the complaint by the Research Scholar was lodged with the Registrar of the University and not with the ICC, which, the learned Single Judge held, was a violation of the rules. It was further he....
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....guments and not as a ground in the Writ Petition. Even otherwise, the learned Senior Counsel pointed out that the learned Single Judge had upheld the constitution of the Committee. 23. The learned Senior Counsel further pointed out that if there had been violation of principles of natural justice on substantive issues then, the proceedings could be interfered with, but not when the violations complained were about minor procedural aspects. She also pointed out that the proceedings before the ICC involved understanding the nature of the complaint and examining whether redressal of the grievances could be granted. She argued out that for this purpose, flexibility should be afforded in the proceedings. There cannot be a determined or a rigid manner in which the enquiry should be conducted. She further pointed out that in a complaint of this nature, made by a student against the Head of the Department, other students would not normally come forward to state any fact as they would naturally apprehend that such statement would affect their future career as students. 24. The learned Senior Counsel pointed out that the learned Single Judge had stated that the complaint had been lodge....
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....ch Guide/ Professor had not given any explanation for the allegations raised by the Research Scholar. The learned Senior Counsel therefore stated that the learned Single Judge had erred in coming to a conclusion that the Research Guide/ Professor had not caused any harassment to the Research Scholar. She urged that the said finding of the learned Single Judge should be set aside and the Writ Appeal filed by the Research Scholar should be allowed. 30. Mr. S. R. Rajagopal, learned Senior Counsel on behalf of the University pointed out that a complaint was lodged by the Research Scholar before the Registrar of the University raising grievances of sexual harassment at the hands of the Research Guide/ Professor. Thereafter, in accordance with the University Grants Commission Guidelines (Prevention, Prohibition and Redressal of Sexual Harassment) Regulations 2015, an Internal Complaints Committee was immediately constituted on 16.05.2018 by the University. 31. The learned Senior Counsel very strongly refuted all allegations raising imputations against the members of the Committee. According to him, the Presiding Officer of the Committee was a Professor/ Head of Department of Chemis....
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.... facts stated, the Committee had also enquired students, teaching and non teaching staff and their answers were also recorded. The entire records were maintained meticulously. The proceedings were not conducted in haste but over a period of time. It was conducted on 12.12.2018, 13.12.2018, 21.12.2018, 11.01.2019 and on 21.01.2019. 35. It was also pointed out by the learned Senior Counsel that the entire proceedings were recorded in a compact disk and retained by the Presiding Officer in an audio format. He took the Court through the proceedings of ICC in which the records of the each day proceedings had been meticulously stated. He also pointed out that an issue was raised about an audio tape and to clarify, the same was played to both the Research Scholar and the Research Guide/ Professor in the presence of the members of the Committee. 36. He further contended that as a matter of fact, when the Research Scholar sought further witnesses to be examined in the meeting held on 21.01.2019, the Committee had refused to accept such request. The audio recording presented by the Research Scholar was also played before the Research Guide/ Professor and his explanations were also soug....
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.... informed about the date on which the hearing would be conducted. He pointed out that therefore the Research Guide/ Professor had no other alternate but to participate in the enquiry. The learned Senior Counsel stated that merely because the Research Guide/ Professor had participated in the enquiry cannot be urged as a ground to infer that he had accepted the correctness of the constitution of the Committee or the eligibility of the Members to be part of the Committee. 41. In this connection, the learned Senior Counsel pointed out that the Presiding Officer of the Committee was the Head of Department of the Chemistry Department, and therefore held an equivalent post as that of the Research Guide/ Professor. He then pointed out the regulations and the stipulations in the Act and argued that it was not just sufficient that a senior level person should be the Presiding Officer but the status was also important. Her status was Head of Department, which was the equivalent status of the Research Guide/ Professor. The learned Senior Counsel therefore contended that she was not eligible to be nominated as the Presiding Officer of the Committee. Further when the allegations were against ....
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....lled for an explanation. It was an exercise in adherence of the rules governing the student. If the student was present, she can mark the attendance and if not present, then the attendance should reflect that she was absent. 45. The learned Senior Counsel then took the Court through the trail of the electronic messages exchanged between the Research Scholar and the Research Guide/ Professor and pointed out that the messages were not sent at 12.00 in the midnight but were only replies to the messages sent by the Research Scholar. He stated that the complaint had been lodged only when the Research Guide/ Professor had sought an explanation. The fact that an explanation was sought had been admitted by the Research Scholar, though in her counter affidavit in the Writ Petition, she had complained that it was ante dated. 46. The learned Senior Counsel pointed out that the complaint dated 06.12.2018 was not served on the Research Guide/ Professor. He stated that the Research Scholar had joined the Institution on 09.12.2017 and had been working till 06.12.2018 and there was no record of harassment during that one year period. 47. The further allegations relating to arranging a cha....
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....de/ Professor and the University. 54. We are convinced that the privacy of the parties to the litigation should be respected. It is for that purpose we had directed the Registry to place a copy of this Judgment before the Hon'ble The Chief Justice to ensure that Practice Directions are issued and a Standard Operating Protocol is formulated in matters where there are allegations of sexual or even mental and emotional harassments. We would however clarify that the writ petition in W.P.(MD).No. 19440 of 2019 had been filed by the Research Guide/ Professor. In that Writ Petition, the appellants in W.A.(MD).No. 414 of 2020 whom we have termed as Officials of the University were the first and third to fifth respondents. The appellant in W.A.(MD).No. 413 of 2020, whom we have referred as Research Scholar was the second respondent. In effect, W.A.(MD).No. 413 of 2020 had been filed by the Research Scholar and W.A.(MD).No. 414 of 2020 have been filed by the Registrar and other Officials of the University. The first respondent in both the Writ Appeals is the Research Guide/ Professor. We would in the course of this narration continue to refer to the parties only as Research Scholar (A....
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....e sanction of admission. 59. In the affidavit filed in support of the Writ Petition, the Research Guide/ Professor stated that the University had then constituted an Internal Complaints Committee to enquire into the said complaint. It was contended that the constitution of the Committee was against the regulations of the UGC and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It was further stated that an audio record was presented as evidence during the enquiry which was in Malayalam language. The Committee had taken a decision to get a report from a professor at Thiruchur University, Kerala. It was further stated that the expert opined that the Research Scholar had actually stated that she was very particular to undergo Ph.D under the Research Guide/ Professor. The opinion concluded that there was no element of misconduct during the conversation. It was thus contended by the Research Guide/ Professor in his affidavit that the complaint of the Research Scholar did not fall under the definition of Section 2(n) of the Act. 60. The Research Guide/ Professor further stated in the affidavit that the Presiding Officer of the Internal ....
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....7. One of the primary contentions raised by the learned Senior Counsel on behalf of the Research Guide / Professor is that the constitution of the Committee by the University was not in accordance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter called as Act). 68. The Internal Complaints Committee had been constituted under the provisions of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015. 69. The thrust of the argument of the learned Senior Counsel on behalf of the Research Guide / Professor is that, the Regulations are subordinate legislation and therefore, the provisions of the Act alone will prevail. 70. Section 4 of the Act falling under Chapter - II relating to Constitution of Internal Complaints Committee provides for Constitution of an Internal complaints Committee. Section 4(2) provides for the members who could be nominated by the employer to the Internal Complaints Committee. Section 4(2) is as follows: "4. Constitution of Internal Complaints C....
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.... the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in subsection 2(o); Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization;" (b) two faculty members and two non-teaching employees, preferably committed to the cause of women or who have had experience in social work or have legal knowledge, nominated by the Executive Authority; (c) Three students, if the matter involves students, who shall be enrolled at the undergraduate, master's, and research scholar levels respectively, elected through transparent democratic procedure; (d) one member from amongst non-government organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, nominated by the Executive Authority." 73. The provision relating to nomination of a Presiding Officer is more or less similar to the stipulations given under Section 4 of the Act. There is one distingui....
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....so provide for appointment of a Presiding Officer from any other Department within the University or from any other organization. He therefore, questioned the appointment of the Presiding Officer by limiting the choice to professors in the University and not seeking nomination from any other organization or department. 80. We do not agree with the said contention of the learned Senior Counsel. The words senior level indicates, holding a post senior to that of the Research Guide / Professor. When the overall combined seniority of the faculty members of the University is taken into consideration, the Presiding Officer nominated in the instant case, was certainly senior to the Research Guide / Professor. If the two of them were otherwise equal on merits and if a choice were to to be made between the two of them to be promoted to a higher post and if seniority was one of the conditions to be so considered for such promotion to the higher post, then all other factors been equal, the Presiding Officer having been appointed as Head of Department a clear four years earlier than the Research Guide / Professor would certainly be considered for such promotion ahead of the Research Guide / ....
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....e of Repugnancy since under Article 254 of the Constitution the subject "Education" is in the Concurrent List, Schedule - VII of the Constitution. 85. The University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 was notified by the Ministry of Human Resource Development by notification dated 02.05.2016. The Regulations were made in exercise of the powers conferred by Section 26(i)(g) of the University Grants Commission Act, 1956 r/w Section 20(i) of the said Act. 86. Section 26 of the said Act gives power to the Commission to make Regulations consistent with the Act (UGC Act, 1956) and the Rules made thereunder. It must also be mentioned that Section 25 of the said Act gives power to the Central Government to make Rules to carry out the purpose of the Act by notification in the Official Gazette. 87. No arguments had been advanced by Mr. V. Prakash, learned Senior Counsel that the UGC Regulations had not been properly notified. 88. Section 26(i)(g) of the Act is as follows: "26. Power to make regulations- (1) The Commission may, by....
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..... Gadhvi V. State of Gujarat and Others reported in (2022) 5 SCC 179, the Hon'ble Supreme Court in para 50 while examining the binding nature of the UGC Regulations had stated as follows: "50. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject "education" is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice- Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto." 94. This view had been further expanded in paragraph 20.2, which is as follows: "20.2. The UGC Act, 1956 was ....
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.... programme of study either through regular mode or distance mode, including short-term training programmes in a HEI; Provided that a student who is in the process of taking admission in HEIs campus, although not yet admitted, shall be treated, for the purposes of these regulations, as a student of that HEI, where any incident of sexual harassment takes place against such student; Provided that a student who is a participant in any of the activities in a HEI other than the HEI where such student is enrolled shall be treated, for the purposes of these regulations, as a student of that HEI where any incident of sexual harassment takes place against such student; 100. In the instant case, the Research Scholar had been pursuing a programme of studies through regular mode. 101. 'Sexual Harassment' had been defined in Regulation 2(k) of UGC and is as follows: "2(k) "sexual harassment" means- (i) "An unwanted conduct with sexual undertones if it occurs or which is persistent and which demeans, humiliates or creates a hostile and intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and includes any one or....
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....er service rules and initiate action for misconduct if the perpetrator is an employee." 105. The above provisions stipulate that sexual harassment is a misconduct under the service rules and action must be initiated for such misconduct if the perpetrator is an employee. 106. There cannot be any denial or dispute over the fact that the Research Guide / Professor was an employee, at the relevant point of time, under the University. 107. Further, Regulation 3.2 of UGC provides supportive measures to be provided. Regulation 3.2(4) of UGC is as follows: "3.2 Supportive measures.- ...... ...... (4) Since research students and doctoral candidates are particularly vulnerable the HEIs must ensure that the guidelines for ethics for Research Supervision are put in place." 108. The above provision very specifically relates to Research Students and doctoral candidates who are recognized as being particularly vulnerable. It had been stated that guidelines for ethics for Research Supervision must be put in place. 109. It is thus seen that the University Grants Commission Regulations had taken under its ambit the vulnerability of....
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....n sought. 113. We disagree with the contention that the view of the Research Guide / Professor should have been sought. Formation of the committee lay within the exclusive domain of the University. 114. The learned Senior Counsel pointed out that statements were recorded behind the back of the Research Guide / Professor and that he had no opportunity to cross-examine the witnesses. It was argued that he never even knew the contents of the statements made by the witnesses during their enquiry. The learned Senior Counsel in this regard fell back to the provisions stipulated in the Act / The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 115. But, as stated, the UGC Regulations are alone applicable in complaints by Doctoral candidates of sexual or mental or emotional harassment. The process of conducting as inquiry had been provided in Regulations 8(1)(2) and (3) of UGC Regulations which are as follows: "8. Process of conducting Inquiry- (1) The ICC shall, upon receipt of the complaint, send one copy of the complaint to the respondent within a period of seven days of such receipt. (2) Upon receipt of the copy of th....
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....reduce them again: 1. Non-Allocation of sitting place for the first six months even after continuous insistence. Later, she was allocated a chair direct opposite to the research supervisor, ***, though *** expressed her uncomfortable state, she was made to sit in the same way. 2. Threat of cancellation of Ph.D of ***. 3. She has given sum of two lakhs as bribe to *** for her Ph.D registration process as demanded by her guide ***. 4. Seeking of sexual favours. 5. Unauthorised academic assignments to the complainant, including handling of entire three papers in different semesters, question setting and evaluation of internal test. 6. Physically touched her hands in name of palmistry. 7. Frequently calling her to accompany him in the car and to use his car. 8. Unwelcome invites for dinner frequently. 9. Personal comments praising her physical appearance like praising her nose ring and fair complexion. 10. Offering gifts." 123. These allegations will have to be viewed from the eyes of Research Scholar. She was the victim. It is not on an overture for sexual favour but continuous mental and emot....
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....-pune-university- 2786786/ 7. Phd student's harassment plaint against IISER guide under probe https://timesofindia.indiatimes.com/city/chandigarh/phdstudents- harassment-plaint-against-iiser-guide-under-probe/ articleshow/70198481.cms 8. Phd student accuses guide of harassment; Chemistry Head reacts: 'Save our image, beta' Female PhD student accuses Prof Bhatt of sexual and mental harassment; complains to head of Chemistry department, who asks her to 'save the image of the department if possible'; after students' union raises issue, GU sends prof on forced leave, institutes inquiry. https://www.ahmedabadmirror.com/phd-student-accusesguide- of-harassment-chem-head-reacts-save-our-image-beta/ 68570310.html 9. The dark side of Academia With the release of the Hema Committee report, the Malayalam film industry is witnessing another #MeToo movement. However, workplace harassment, sexual abuse and rampant misogyny are not limited to the tinsel town, but also to the field of academic. https://www.newindianexpress.com/cities/kochi/2024/Aug/2 9/the-dark-side-of-academia 10. Workplace harassment not to be shrugg....
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....zar Patrika (P) Ltd. v. Workmen, AIR 1964 SC 339 : (1964) 3 SCR 601], the termination of an employee's service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defence, it cannot be characterised as a proper domestic inquiry held in accordance with the rules of natural justice." 21 [Ed.: Para 21 corrected vide Official Corrigendum No. F.3/Ed.B.J./70/2016 dated 16-2-2017.] . The Apex Court in State of Uttaranchal v. Kharak Singh [State of Uttaranchal v. Kharak Singh, (2008) 8 SCC 236 : (2008) 2 SCC (L&S) 698] had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paras 9, 10, 11, 12, 13 and 15, which are to the following effect: (SCC pp. 240-44) "9. Before analysing the correctness of the above submissions, it is useful to refer various....
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.... to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.' 11. In ECIL v. B. Karunakar [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704], it was held: (SCC pp. 728f-729c & 730a-d) '(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry vi....
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.... inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.' 12. In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., (1999) 2 SCC 21 : 1999 SCC (L&S) 439]....
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....the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any." (emphasis in original) 127. In the instant case, it must be kept....
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....the individual and understand the emotional stress of a trial process. The Court must also understand that if the Research Guide / Professor had deliberately evaded effective participation then, he cannot turn around and complain about the procedure adopted. Opportunities can only be afforded. The onus was always on the Research Guide / Professor to take up the opportunity and participate in the enquiry. 130. Ms.R.Vaigai, learned Senior Counsel for the Research Scholar had taken the Court through the proceedings of the Committee. The learned Senior Counsel placed reliance on the judgment reported in (2013) 1 SCC 297, Medha Kotwal Lele and others V. Union of India and others with specific reference to paragraph Nos. 44 and 44.1, which are as follows: "44. In what we have discussed above, we are of the considered view that guidelines in Vishaka [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932] should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place: 44.1. The States and Union Territories which have not yet carried out adequate and appropriate amendments in their resp....
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....e manner in which the ICC/LC/IC is expected to function under the Statute, the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true, the result of lodging a false or a malicious complaint and the remedies that may be available to a complainant if dissatisfied with the Report of the ICC/LC/IC, etc. 86. However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. If the working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality. If the authorities/managements/employers cannot assure them a safe and secure workplace, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt. It is, therefore, time for the Union Government and the State Governments to take affirmative action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms.....
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....ed therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of ....
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.... has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." 135. It has to be examined whether the ....
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....earch Guide / Professor regarding the procedure adopted by the Committee are substantive in nature or procedural in nature. Harassment affects the mental health of every student. We placed ourselves in a position to understand that harassment. It would have caused significant pain to the Research Scholar. She would have dreamt to come out of the University with a Doctorate Degree, but midway through, she had been practically reduced to a vegetative state. The Courts have to understand the plea for justice by a victim of emotional / mental and sexual harassment. 140. We hold that the learned Single Judge had erred in proceeding to appreciate the report on technicalities and then interfering with the findings of the Committee and with the impugned order. The University had a duty to uphold its reputation. As stated in the UGC Regulations, ethics is fundamental for a Research Guide or a Professor. If there is failure to uphold ethics and if there is a corresponding intention to take advantage of the vulnerability of a student, then the perpetrator will have to face the consequences. 141. We are of the firm view that the learned Single Judge had unfortunately not appreciated the ....